HARIHAR SINGH Vs. BRIJNANDAN SAHAY

JUDGEMENT

(1.) This second appeal arises out of a suit instituted by three brothers, who are members of a joint Hindu family, for a declaration of their raiyati title to a certain holding and for recovery of possession and mesne profits. In the trial Court the suit was decreed in part, and both parties appealed, with the result that the appeal of the defendants was dismissed and the plaintiffs appeal was allowed and the plaintiffs suit was decreed. Against the decision of the lower appellate Court the defendants preferred this second appeal impleading the three defendants as respondents.

(2.) One of the respondents died before the appeal came on for hearing and his heirs were not substituted in his place. In these circumstances the learned Government Pleader raised a preliminary objection that the whole appeal had abated, and he relied on the decision of the Privy Council in Wajid Ali Khan v. Puran Singh AIR 1929 PC 68 and the decision of this Court in Tej Narain Sahu v. Dal Ram Sahu AIR 1922 Pat 606. In Wajid Ali's case AIR 1929 PC 68 the plaintiffs had obtained a joint decree for pre-emption and the defendants had appealed and it was held that the legal representatives of a deceased respondent not being bound by a decree passed by the appellate Court in their absence, would be entitled to execute the whole decree. In the case of this Court reported in Tej Narain Sahu V/s. Dal Ram Sahu AIR 1922 Pat 606, the defendants appealed against a decree awarding joint possession of certain land to the plaintiffs.

(3.) One of the plaintiffs was not impleaded as a respondent and it was held that the appeal was not maintainable in the absence of the plaintiff who was not impleaded. There is nothing to distinguish the present case from the facts of the case just referred to. The preliminary objection must therefore be upheld and the second appeal dismissed with costs.